Asylum seekers and the law

Australian domestic law governing Mandatory Detention is extremely controversial. It applies to asylum seekers travelling without the prior consent of Australia, making them “unlawful non citizens”, as stipulated in the 1958 Migration Act, Division 6, Section 189(1):

1. If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
2. If an officer reasonably suspects that a person in Australia but outside the migration zone:
   (a) is seeking to enter the migration zone (other than an excised offshore place); and
   (b) would, if in the migration zone, be an unlawful non-citizen; the officer must detain the person.

The position of mandatory detention as evidenced above is generally accepted as being in contravention of Article 31 of the Refugee Convention insofar as that it imposes the mandatory detention penalty of asylum seekers on account of their unauthorised travel and arrival to Australia. Through being a signator of the convention, Australia is bound by Article 31 not to impose penalties on asylum seekers on account of their illegal entry or presence.

The position that it is in violation of international law is further supported within Article 9 of the Universal Declaration of Human Rights and in Article 9 of the International Covenant on Civil and Political rights which deals with arbitrary detention.

The legislations were also presented as acts to discourage asylum seekers arriving unlawfully to Australia via boats and submitting to people smugglers. The changes appealed to the Australian population during a tense time in the world. It emphasised the possibility that the “unauthorised” boat arrivals could be harbouring terrorists. It introduced mandatory sentences to those convicted of people smuggling and was aimed at preventing both the unauthorised arrivals situation and the people smugglers issue, about which there was a heated political issue during the time of enforcement of these acts and which proved to be quite powerful political actions in terms of the election at the time (Gentry, Katherine, 2007, “How Tampa became a Turning Point” Amnesty International, Human Rights article).

Of particular interest in regards to these changes, was the power granted that allowed ejection of any persons who have crossed certain borders. This was affected through the change of the Migration Act via section 7a under the heading “Effect on executive power to protect Australia’s borders” which states:

The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.

These powers present implications in international law in regards to non-refoulment principles associated with refugees and the Safety of life at Sea Convention (SOLAS). This issue is still quite prominent in light of ongoing negotiations of Australia with Indonesia in proposing a bilateral treaty of intercepting boats of asylum seekers and processing in centres on Australia’s behalf for processing. As stated by Professor Gillian Triggs in The Australian on October 22, 2009, a treaty that can potentially withdraw the right of asylum seekers to have their claims assessed will mean Australia “would appear to be shirking its international responsibilities” to international law.

SOLAS stipulates that Masters of Ships have the right to land rescued people at sea to the nearest port. Section 7a of the Migration Act allows Australia to act in violation of this law, allowing the government to enter negotiations within a regional framework to facilitate processing of refugees abroad.

Principles of non-refoulment and ejection of individuals are fully articulated in the 1951 Refugee Convention through Articles 32, “Expulsion” and further within Article 33, “Prohibition of Expulsion or return (‘Refoulment’)” of the Convention Relating to the Status of Refugees. These articles effectively provide that states party to the Convention must not expel a refugee except where conditions prove that national security is at stake, and that this must be adhered to unless compelling circumstances relating to national security are present. Article 32(2), deems that additional to non-refoulment principles, states must also allow a refugee to submit evidence to:

... clear himself, and to appeal to and be represented for the purpose before the competent authority or a person or person specially designated by the competent authority.

However, the enacting of section 7a of the 1958 Migration Act effectively gives Australia power to err in this regard, despite international law against such actions and the standing that non-refoulment as codified in the convention.